Three Things to Watch for in Tomorrow’s Campaign Finance Oral Argument at the Supreme Court

Tomorrow the Supreme Court hears argument in McCutcheon v. Federal Election Commission, concerning a First Amendment challenge to various “aggregate” or total limits on the amounts that individuals can give to federal candidates, parties, and certain committees. My Slate piece lays out the issues. The Court does not have live audio or video of the arguments. Tomorrow there will be early reports from SCOTUSBlog and the wire services and then more extended analysis from the excellent Supreme Court press corp. A transcript will issue in the afternoon, and the audio should be released on Friday (though I don’t know if that is affected by the shutdown).

Here are the three top things I’ll be looking for tomorrow, to know how big this ruling is likely to be.

1. Do Chief Justice Roberts and Justice Alito believe that the Supreme Court’s 1976 case of Buckley v. Valeo is fairly in play in this case? As I explained in both the Slate piece and my New York Times “Room for Debate” contribution, the biggest question in the case is whether the Court is going to jettison its rule, since 1976, applying a relatively lax level of scrutiny to reviewing contribution limits. This lax level of scrutiny has allowed most contribution limits to survive constitutional challenge. But Sen. McConnell and others have argued that Buckley should be overruled on this point. There are reasons to think that both Roberts and Alito have sympathy with the underlying argument to make the scrutiny stricter (meaning many contribution limits could be found unconstitutional). But CJ Roberts has indicated he likes to move slowly in changing constitutional doctrine, and Justice Alito has been very careful to say he does not like overturning old precedent without full briefing and compelling reasons to do so. If these justices can reach a result which overturns the aggregate limits without upsetting Buckley, they may be tempted to do so.

2. Is the Court ready to apply its very narrow definition of corruption (to be almost as narrow as bribery) which it used in the spending limit context in Citizens United to the contribution limit context.? There could be great temptation on CJ Roberts and J. Alito’s part to do so. It would have almost the same effect as overturning Buckley (meaning most contribution limits would be in constitutional trouble) without the controversial headline that the Court is overruling the settled precedent of Buckley.

3. Does the argument of the Campaign Legal Center and others about the danger of corruption from joint fundraising committees gain traction? I spelled this out in the Slate piece. The upshot is that federal officeholders will be able to collect multimillion dollar checks from big donors and then distribute the money to other candidates, parties and committees. There’s a chance Justice Kennedy, who saw a corruption danger in the McConnellcase stemming from politicians collecting large soft money donations, also seeing a big corruption danger here. J. Kennedy is a longer shot than CJ Roberts or Alito, but don’t count him out.